All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment

Judgment:

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
)
$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
		'ratiodecidendi' => '',
		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
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$url = 'https://sooperkanoon.com/case/amp/517080/india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
$ctype = ' High Court'
$caseref = 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and<br>'
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
)
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ORDER

M.Y. Eqbal, J.

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
)
$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
		'ratiodecidendi' => '',
		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and<br>'
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
)
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1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
)
$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
		'ratiodecidendi' => '',
		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and<br>'
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
)
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2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
)
$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
		'ratiodecidendi' => '',
		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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		'circuit' => null
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
)
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3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
)
$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
		'ratiodecidendi' => '',
		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
)
$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
)
$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
)
$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
)
$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
)
$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
)
$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
)
$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
)
$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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13. The Essential Commodities Act, 1955 (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
)
$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
)
$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
)
$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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Government of India

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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Ministry of Petroleum and Natural Gas

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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New Delhi-110001

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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Joint Secretary

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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Dealers Commission of Kerosene

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
)
$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
)
$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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			'respondent' => 'State of Jharkhand and ors.',
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	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
		'ratiodecidendi' => '',
		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
)
$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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'Reference may be made to the order dated 13.5.1998 which will speak for itself.

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
)
$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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This writ application is thus disposed of.'

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
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	)
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
		'ratiodecidendi' => '',
		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and<br>'
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
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	)
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
		'ratiodecidendi' => '',
		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and<br>'
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
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	)
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
		'ratiodecidendi' => '',
		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and<br>'
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
)
$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
)
$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
)
$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
)
$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
)
$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
)
$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
)
$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
)
$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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			'respondent' => 'State of Jharkhand and ors.',
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	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
		'ratiodecidendi' => '',
		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
)
$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
	)
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
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29. These writ applications are therefore, dismissed with the aforesaid direction.

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	'title_for_layout' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '517080',
			'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
			'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
			'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
			'authreffered' => '',
			'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
			'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
			'caseanalysis' => null,
			'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
			'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
			'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
			'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
			'court' => 'Jharkhand',
			'court_type' => 'HC',
			'decidedon' => '2004-04-16',
			'deposition' => 'Application dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.Y. Eqbal, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.Y. Eqbal, J.</p><p style="text-align: justify;">1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p style="text-align: justify;">2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p style="text-align: justify;">3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p style="text-align: justify;">4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p style="text-align: justify;">5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p style="text-align: justify;">6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p style="text-align: justify;">7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p style="text-align: justify;">8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p style="text-align: justify;">9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p style="text-align: justify;">10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p style="text-align: justify;">11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p style="text-align: justify;">12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p style="text-align: justify;">13. The <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p style="text-align: justify;">Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p style="text-align: justify;">(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p style="text-align: justify;">(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p style="text-align: justify;">(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p style="text-align: justify;">(c) for controlling the price at which any essential commodity may be bought or sold;</p><p style="text-align: justify;">(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p style="text-align: justify;">(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p style="text-align: justify;">(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p style="text-align: justify;">(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p style="text-align: justify;">(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p style="text-align: justify;">14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p style="text-align: justify;">15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p style="text-align: justify;">16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p style="text-align: justify;">Government of India</p><p style="text-align: justify;">Ministry of Petroleum and Natural Gas</p><p style="text-align: justify;">New Delhi-110001</p><p style="text-align: justify;">Joint Secretary</p><p style="text-align: justify;">Dear Sir,</p><p style="text-align: justify;">Dealers Commission of Kerosene</p><p style="text-align: justify;">The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p style="text-align: justify;"> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p style="text-align: justify;">17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p style="text-align: justify;">18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p style="text-align: justify;">19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p style="text-align: justify;">'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p style="text-align: justify;">20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p style="text-align: justify;">'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p style="text-align: justify;">Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p style="text-align: justify;">This writ application is thus disposed of.'</p><p style="text-align: justify;">21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p style="text-align: justify;">22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p style="text-align: justify;">'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p style="text-align: justify;">2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p style="text-align: justify;">23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p style="text-align: justify;">'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p style="text-align: justify;">In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p style="text-align: justify;">24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p style="text-align: justify;">25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p style="text-align: justify;">26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p style="text-align: justify;">'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p style="text-align: justify;">Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p style="text-align: justify;">As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p style="text-align: justify;">Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p style="text-align: justify;">It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p style="text-align: justify;">This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p style="text-align: justify;">Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p style="text-align: justify;">27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p style="text-align: justify;">'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p style="text-align: justify;">28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p style="text-align: justify;">29. These writ applications are therefore, dismissed with the aforesaid direction.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
			'ratiodecidendi' => '',
			'respondent' => 'State of Jharkhand and ors.',
			'sub' => 'Commercial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state',
	'args' => array(
		(int) 0 => '517080',
		(int) 1 => 'india-kerosene-oil-dealer-federation-jharkhand-dealers-association-vs-state'
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$title_for_layout = 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs State of Jharkhand and ors - Citation 517080 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '517080',
		'acts' => '<a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226',
		'appealno' => 'CWJC No. 1471 of 2001 and WPC No. 410 of 2004',
		'appellant' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association',
		'authreffered' => '',
		'casename' => 'All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors.',
		'casenote' => 'Wholesale dealers of kerosene oil - Realization of Commission--Pursuant to earlier order passed by the Deputy Commissioner by reason of misrepresentation and suppression of actual facts--Illegal and unjustified--Deputy Commissioner concerned entitled to take action against those dealers for recovery of amount Illegally paid to them--Application dismissed with directions. - MOTOR VEHICLES ACT, 1988[C.A.No.59/1988]
 	Section 166; [A.K. Patnaik, CJ, A.K. Gohil & S. Samvatsar, JJ] Application for compensation for personal injury  Death of injured claimant subsequently for some other reasons  Held, Claim for personal injury will abate on the death of claimant. Claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. -  12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard. Life Insurance Corporation of India and other',AIR 1996 SC 2410. Their Lordships, observed :It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice.',
		'caseanalysis' => null,
		'casesref' => 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and;',
		'citingcases' => '  WHOLESALE AGENTS                           RS/KL
  RETAILERS                      30.30
                                 -----
                                 38.70;-----------------------------------------------------
                                      RS/KL
                           Wholesalers     Retailers
-----------------------------------------------------
Dealers remuneration         14.50           14.50
Leakage allowance             7.20           14.40
Operating expenses           31.00           40.10
             Total :         52.70           69.00
-----------------------------------------------------',
		'counselplain' => ' Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;',
		'counseldef' => ' A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala',
		'court' => 'Jharkhand',
		'court_type' => 'HC',
		'decidedon' => '2004-04-16',
		'deposition' => 'Application dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.Y. Eqbal, J.',
		'judgement' => 'ORDER<p>M.Y. Eqbal, J.</p><p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.</p><p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.</p><p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.</p><p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.</p><p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.</p><p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.</p><p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.</p><p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.</p><p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.</p><p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.</p><p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.</p><p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.</p><p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--</p><p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.</p><p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--</p><p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;</p><p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;</p><p>(c) for controlling the price at which any essential commodity may be bought or sold;</p><p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;</p><p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;</p><p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--</p><p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or</p><p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.</p><p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.</p><p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.</p><p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :</p><p>Government of India</p><p>Ministry of Petroleum and Natural Gas</p><p>New Delhi-110001</p><p>Joint Secretary</p><p>Dear Sir,</p><p>Dealers Commission of Kerosene</p><p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;</p><p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------</p><p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.</p><p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.</p><p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--</p><p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'</p><p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--</p><p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.</p><p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.</p><p>This writ application is thus disposed of.'</p><p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.</p><p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--</p><p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.</p><p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?</p><p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--</p><p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'</p><p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'</p><p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .</p><p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.</p><p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--</p><p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.</p><p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.</p><p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.</p><p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.</p><p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.</p><p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.</p><p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'</p><p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--</p><p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'</p><p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.</p><p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2004(2)BLJR1153; [2004(2)JCR626(Jhr)]',
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		'respondent' => 'State of Jharkhand and ors.',
		'sub' => 'Commercial',
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	(int) 0 => 'ORDER<p>M.Y. Eqbal, J.',
	(int) 1 => '<p>1. In these two writ petitions since common question of law and facts are involved, the same are being heard and disposed of by this common order.',
	(int) 2 => '<p>2. The petitioners have prayed for quashing the order passed by the Deputy Commissioner, Godda which was communicated vide memo dated 21.3.2001 whereby the Deputy Commissioners denied payment of wholesale dealers commission fixed earlier in pursuant to the order passed by Patna High Court in CWJC No. 11057/96 and further for a writ commanding upon respondent No. 4 Deputy Commissioner, Godda to restore of commission @ 2.15% on kerosene oil allowed to the kerosene oil wholesale dealers of Godda.',
	(int) 3 => '<p>3. Petitioners' case is that Government of India in the Ministry of Petroleum and Chemical had appointed a working group consisting of three members including the, Chairman, namely, Sri. J.U. Talukdar, ICA retired Ex. Chief Secretary, Government of West Bengal, Calcutta, Chairman Sri. S.S. Shiralkar, Additional Secretary, Ministry of Finance Member and Sri. N. Krishnan. Chief Cost Accounts Officer, Ministry of Finance Member. The working group was appointed to examine a report in the matter of determination of the ex-refinary process of refined petroleum products. The said Committee after careful exmination had fixed the commission at Rs. 7.70 on the sale of the kerosene when price of one L/K was as Rs. 358.80 while fixing this rate the Committee had taken note of the fact that in the year 1965 the commission to the agents were being paid at the rate 2.15% of the value of the kerosene oil per K/L sold.',
	(int) 4 => '<p>4. The petitioner federation wrote to the Ministry of Petroleum requesting for fixing the agents commission at the rate of 2.15% of the total value per K/L and also other allowance 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the State level co-ordinator, Orissa issued a letter on 24.9.1991 addressed to the F.A. cum Deputy Secretary to the Government of Orissa, Food and Civil Supplies Department, Government of Orissa for revision of handling, leakage barrel depreciation. The dealers federation has been agitating for increasing the amount of agents commission from time to time by making request to the Union of India in the Ministry of Petroleum and the co-ordinator of oil companies.',
	(int) 5 => '<p>5. Petitioners' further case is that the Joint Secretary, Government of India, Ministry of Petroleum and Natural Gas dated 30th August, 1993, revised the commission and re-fixed the rate which came into effect from 7.10.1993. The petitioner federation met the respondents a number of times and apprised them of the situation and handed over memorandum, but always received a stereotype reply that the. matter is being examined and decision will be communicated in time. Petitioner then filed writ petition being CWJC No. 11057/96 in the Patna High Court which was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of kerosene oil. The writ petition was disposed of with a direction to the petitioner to move the appropriate authority for redressal of their grievance. The petitioner federation again filed petition for modification of the order dated 13.5.1998 and the said order was modified giving liberty to the petitioner to move the Union of India for redressal of its grievance. Petitioners/thereafter made representation to the Commissioner cum Secretary, Food, Supply and Commerce Department, Government of Bihar requesting for grant of 2.15% commission to the whole sale dealers of kerosene oil who are the members of the petitioner federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, Bihar Patna vide circular dated 10.8.1999 addressed to the District Magistrates, Rohtas, Bhojpur and Bokaro directed them to, take appropriate decision in the light of the judgment and the order dated 13.5.1998 passed by the Patna High Court. The petitioner federation also filed representation before the Deputy Commissioner, Godda requesting to allow a commission of 2.15% to the wholesale dealers of kerosene oil in the light of the order dated 13.5.1998 passed by the Patna High Court. Deputy Commissioner, Godda considering the representation filed by the petitioner re-fixed the new rate of commission of kerosene oil at the rate of 2.15% per K/L plus leakage and other expenses.',
	(int) 6 => '<p>6. It is contended that the District Magistrates/Deputy Commissioners in the State of Bihar and Jharkhand had allowed 2.15% of the commission plus leakage and other expenditure of kerosene oil to the wholesale kerosene oil dealers to the respective district. However, Deputy Commissioner, Godda passed order which was communicated by the District Supply Officer, Godda vide memo Nos. 43 and 44 dated 21.3.2001 whereby he has illegally deprived the whole sale dealers (members) of the petitioner federation in payment of commission of 2.15% which was earlier allowed by him.',
	(int) 7 => '<p>7. Petitioners' further case is that respondent No. 2 namely, Commissioner-cum-Secretary, Food, Supply and Commerce Department, Government of Jharkhand issued a letter dated 29.11.2003 addressed to all the Deputy Commissioners, Jharkhand informing them that Ministry of Petroleum and Natural Gas, Government of India is the competent authority to fix the rate of commission and not the Deputy Commissioner and therefore illegal payment of 2.15% to the member of the Dealers' Association must be stopped forthwith.',
	(int) 8 => '<p>8. In the counter affidavit filed by respondent No. 2 Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, Ranchi, it is stated that commission to wholesale kerosene, oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas. The State Government is not competent to fix the rate of commission to wholesale kerosene oil dealers. The State Government only communicates to the Deputy Commissioners of the Districts, the rate of commission revised and fixed by the Government of India. Respondents' case is that when it came to the knowledge of the State Government that in some of the districts of the State, kerosene oil wholesale dealers have managed to get additional commission other than the commission fixed by the Government of India by giving reference to the order passed by the Patna High Court on 13.5.1998 in CWJC No. 11057 of 1996 steps have been taken for stopping illegal payment of commission. It is stated that petitioner by suppressing the order dated 13.5.1998 passed in the writ petition manage to get the additional commission besides the commission fixed by the Government of India. Accordingly the State Government vide letter dated 22.12.2003 directed the Deputy Commissioners of the Jharkhand State that the Deputy Commissioner is not the competent authority to fix commission of kerosene oil wholesale dealers.',
	(int) 9 => '<p>9. Mr. Basudev Prasad, learned Senior Counsel appearing for the petitioners firstly submitted that respondents could not have withdrawn or stopped payment of 2.15% commission to the wholesale dealers without prior notice and opportunity of hearing to the petitioners. The impugned order is, therefore, illegal, void and violative of principles of natural justice. Learned counsel submitted that the commission at the rate of 2.15% was fixed by the order dated 13.5.1998 passed CWJC No. 11057 of 1996 passed by the Patna High- Court and the said order was never recalled rather by subsequent, order dated 13.10.1998 petitioners were given liberty to move the Central Government for fixation of commission. According to the learned counsel the impugned order withholding or stopping payment of commission amounts to illegal deprivation of the rational privilege of commission of wholesale kerosene dealers and it shall also amount to violation of the principles of promissory estoppel as held by the Supreme Court in the case of 'Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Ors.' AIR 1979 SC 621. Learned counsel lastly submitted that the Government of India under the provisions of Essential Commodities Act, only fixed the price and the power for fixing commission has been delegated to the State Government and therefore no illegality was committed by the Deputy Commissioners in fixing 2.15% commission which has been illegally withdrawn.',
	(int) 10 => '<p>10. On the other hand Mr. Anil Kumar Sinha, learned Advocate General at the very outset submitted that no order was passed by the Patna High Court in CWJC No. 11057 of 1996 fixing commission at the rate of 2.15%. As a matter of fact petitioners by suppressing the order dated 13.10.1998 passed in the said writ petition illegally procured the order by the Deputy Commissioners for payment of 2.15% commission.',
	(int) 11 => '<p>11. Learned Advocate General then submitted that commission of wholesale kerosene oil dealers is fixed by the Government of India through Ministry of Petroleum and Natural Gas and the State Government is not competent to fix rate of commission. Learned counsel submitted that the wholesale dealers of the petitioner-association at the same time moved the Government of India and rate of commission was re-fixed vide Government of India's letter No. P-20028/2/2000 P.P. dated 4.6.2002. Learned counsel lastly submitted that withdrawal of stoppage of commission illegally paid by the State Government cannot and shall not be taken as violation of principles of natural justice.',
	(int) 12 => '<p>12. Before appreciating the rival submissions of the learned counsels, I would like to refer some of the relevant provisions of the Act relating to the matter in issue.',
	(int) 13 => '<p>13. The <a>Essential Commodities Act, 1955</a> (in short the Act) has been enacted in the interest of the general public for the control of production, supply and distribution of certain commodities. The object of the Act is to secure equitable distribution of essential commodities in the interest of general public. Section 2 of the Act defines essential commodities which means and include various commodities including petroleum and petroleum products. Section 3 confers powers to the Central Government to make orders providing for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 reads as under :--',
	(int) 14 => '<p>Powers to control production, supply, distribution, etc. of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.',
	(int) 15 => '<p>(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide--',
	(int) 16 => '<p>(a) for regulating, by licences, permits or otherwise, the production or manufacture, of any essential commodity;',
	(int) 17 => '<p>(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified foodcrops, and for otherwise maintaining or increasing the cultivation of foodcrops generally, of specified foodcrops;',
	(int) 18 => '<p>(c) for controlling the price at which any essential commodity may be bought or sold;',
	(int) 19 => '<p>(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity;',
	(int) 20 => '<p>(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;',
	(int) 21 => '<p>(f) for requiring any person holding in stock or engaged in the production or in the business of buying or selling, of any essential commodity :--',
	(int) 22 => '<p>(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or',
	(int) 23 => '<p>(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons an in such circumstances as may be specified in the order.',
	(int) 24 => '<p>14. From bare perusal of the aforesaid provision, it is manifest that it is Central Government who may make order inter alia for controlling price at which any essential commodities may be brought or sold. Section 5 of the Act empowers the Central Government to delegate the power to the State Government to make orders or issue notification in relation to such matters as may be specified in the direction.',
	(int) 25 => '<p>15. In exercise of power conferred by Section 3 of the said Act the Central Government made order namely, the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993. Section 2(d) of the said order defines the word 'declared price' in relation to kerosene sold under the public distribution system means the maximum selling price declared by the Central Government, from time to time with reference to an area and shall include such other charges, rates, duties and taxes, prescribed by the State Government or the District Collector.',
	(int) 26 => '<p>16. From reading of the aforesaid provisions of the Act and the order it is clear that it is the Central Government and not the State Government having power to fix commission payable to the wholesale dealers. Petitioners themselves in the writ petition admitted that in 1965 a Committee was constituted by the Central Government for the purpose of fixation of price and fixing the commission payable to the dealers. Petitioners further admitted in the writ petition that Government of India, Ministry of Petroleum and Natural Gas by letter dated 30.8.1993 revised the commission and refixed the rate of the sale and supply of kerosene oil. In support of that petitioners have annexed the aforesaid letter dated 30.8.1993 as Annexure-3 to the writ petition. The letter reads as under :',
	(int) 27 => '<p>Government of India',
	(int) 28 => '<p>Ministry of Petroleum and Natural Gas',
	(int) 29 => '<p>New Delhi-110001',
	(int) 30 => '<p>Joint Secretary',
	(int) 31 => '<p>Dear Sir,',
	(int) 32 => '<p>Dealers Commission of Kerosene',
	(int) 33 => '<p>The current rate of dealers commission on kerosene oil dated 28th July, 1983 (copy enclosed for ready reference) , are as under : ;',
	(int) 34 => '<p> WHOLESALE AGENTS RS/KLRETAILERS 30.30-----38.70Requests have been received from dealers associations and federations etc. that these rates are inadequate considering the increase in selling prices of kerosene oil and other costs since 1983. The matter has been examined in detail by a Committee of Marketing Directors of oil companies and after careful consideration of the recommendations of the Committee. It has been decided to revise the rates of commission on SKO effective 1.9.1993. The revised rates shall be as under :-----------------------------------------------------RS/KLWholesalers Retailers-----------------------------------------------------Dealers remuneration 14.50 14.50Leakage allowance 7.20 14.40Operating expenses 31.00 40.10Total : 52.70 69.00-----------------------------------------------------',
	(int) 35 => '<p>17. In the supplementary counter affidavit filed by the respondents, it is stated that petitioners/federation had approached the Ministry of Petroleum and Natural Gas, Government of India and the department vide letter dated P-20028/2/2000 P.P. dated 27.10.2000 fixed the rate of commission @ Rs. 170.00 per kilo litre. In order to obey the direction of Government of India, Ministry of Petroleum and Natural Gas, the Secretary Food, Supply and Commerce Department vide letter dated 30.1.2001 directed all the District Magistrates and concerned officers to revise the rate of commission and in the light of the order the Deputy Commissioner, Godda revised the previous rate of commission.',
	(int) 36 => '<p>18. Taking into consideration the aforesaid provisions of the Act and the facts stated in the affidavit by the parties I have no doubt in my mind in holding that the wholesale dealers' commission is fixed and time to time revised by the Central Government, Ministry of Petroleum and Natural Gas and the State Government has simply to implement to decision of the Central Government.',
	(int) 37 => '<p>19. The next question that falls for consideration is whether the withdrawal and/or denial of commission allowed by the Deputy Commissioner of some of the districts of the State of Jharkhand which was being paid to the petitioners allegedly on the basis of the order passed by the Patna High Court is justified. Petitioners whole case is that the Deputy Commissioner of the concerned district fixed the commission at the rate of 2.15% pursuant to the direction issued by this Court in CWJC No. 11057 of 1996. It has not been disputed by the petitioners that before filing the aforesaid writ petition they moved the Ministry of Petroleum, Government of India requesting for fixing agent's commission at the rate of 2.15% of the total value of per kilo litre and other allowance. When the representation was pending before the Central Government the petitioners filed aforesaid writ petition CWJC No. 11057 of 1996 before the Patna High Court. The writ petition was disposed of on 13.5.1998 by passing the following order :--',
	(int) 38 => '<p>'In this case, the prayer of the petitioner is for a direction to the respondent to fix the rate @ 2.15% per litre of the kerosene oil, which was prevailing herein before. The nature of the relief sought for cannot be decided at this stage in writ jurisdiction. Accordingly, the petitioner, if so advised, may approach the District Magistrate, who is the competent authority for grant of relief in terms of the prayer made in this writ application. However, if the petitioner filed such petition, the District Magistrate will hear the representative of the petitioner and dispose of the same without being prejudice by the order of this Court.'',
	(int) 39 => '<p>20. After the aforesaid order was passed the petitioners realized that the District Magistrate has no authority to fix the commission and therefore they sought modification of the aforesaid order dated 13.5.1998. Consequently, by order dated 13.10.1998 the aforesaid order dated 13.5.1998 was modified. The order dated 13.10.1998 reads as under :--',
	(int) 40 => '<p>'Reference may be made to the order dated 13.5.1998 which will speak for itself.',
	(int) 41 => '<p>Learned counsel for the petitioner submits that the competent authority is the Union of India through the Ministry of petroleum. If it is so, the petitioner will be at liberty to approach the Union of India for redressal of its grievances.',
	(int) 42 => '<p>This writ application is thus disposed of.'',
	(int) 43 => '<p>21. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly, petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The, Deputy commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners.',
	(int) 44 => '<p>22. Mr. Basudev Prasad, learned counsel for the petitioners mainly assailed the impugned order as violative of principles of natural justice. According to the learned counsel even if anything illegally granted by the State cannot be withdrawn without following the principles of natural justice. In this connection, learned counsel relied upon the decision of the Supreme Court in the case of 'The Board of High School and intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors.', AIR 1970 SC 1039, and in the case of 'State of Assam and Anr. v. Raghava Rajgopalachari'. 1972 SLR 44. I do not find any force in the submission of the learned counsel. The decisions referred herein above will not apply in the facts of the instant case. The Apex Court proceeded on the basis that if the impugned order imposes penalty then before imposing penalty principles of natural justice must be followed. In the instant case petitioners, knowing fully well that the Central Government is the competent authority to fix the commission approached the authority of the State Government and on the basis of mis-interpretation of the order of the Patna High Court procured a direction for payment of 2.15% commission. In my considered opinion withdrawal of such illegally payment of commission by the order of the Deputy Commissioner will not amount to imposing any penalty on the petitioners, particularly when the petitioners are getting commission from the Central Government. In this context it would be appropriate at this stage to refer a passage of decision of the Supreme Court in the case of 'Shiv Sagar Tiwari v. Union of India'. AIR 1997 SC 2725 :--',
	(int) 45 => '<p>'Natural justice is after all 'no unruly horse no lurking land mine,' as characteristically stated by Krishna Iyar, J. in Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965. Its unnatural expansion without reference to this realities can be 'exasperating' as observed by the learned Judge. It is also worth while to remember, as stated in para 24 of S.L. Kapoor Jag Mahan, AIR 1981 SC 136, that where on admitted or indisputable facts only one conclusion is possible the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent' got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.',
	(int) 46 => '<p>2(a) How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?',
	(int) 47 => '<p>23. Admittedly, by the impugned order the concerned authority of the State of Jharkhand withdrew/recalled the earlier order illegally granting dealers' commission to the members of the petitioners/association. If this Court interfere with the impugned order then that will amount to restoring illegal order whereby petitioners illegally started getting commission from the Deputy Commissioner also. This Court therefore cannot grant such relief to the petitioners. Reference may be made to the case of 'Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors.', AIR 1999 SC 3609, and their lordships observed :--',
	(int) 48 => '<p>'In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 : (1966) 2 SCR 172, this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.'',
	(int) 49 => '<p>In Mahammad Swalleh v. IIIrd Addl. District Judge. Meerut, AIR 1988 SC 94 : (1988) 1 SCR 841, similar view was also expressed by this Court. In this case the order passed by the Prescribed Authority under U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the Prescribed. Authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The orders of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the Prescribed Authority itself being had, refusal of the High Court to exercise powers under Article 226 no exception can be taken.'',
	(int) 50 => '<p>24. Taking into consideration the entire facts and circumstances of the case and the discussion made herein above, 1 have no doubt in my mind in holding that the members of the petitioner association were illegally paid commission at the rate of 2.15% pursuant to earlier order passed by the Deputy Commissioner of some of the districts by reason of mis-representation and suppression of actual facts by the petitioners. .',
	(int) 51 => '<p>25. Learned Advocate General in course of argument submitted that petitioners are liable to refund the amount of commission illegally received by them pursuant to the order and direction of the Deputy Commissioner. I find some force in the submission of the learned counsel.',
	(int) 52 => '<p>26. While hearing the petitioners at the admission stage this Court passed the following order on 23.1.2004 in WPC No. 410 of 2004 :--',
	(int) 53 => '<p>'Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.',
	(int) 54 => '<p>Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.',
	(int) 55 => '<p>As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.',
	(int) 56 => '<p>Till further orders, if the members of the petitioner charge commission @ 2.15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.',
	(int) 57 => '<p>It appears from Annexure-11, that the matter is being examined. Such enquiry may go on.',
	(int) 58 => '<p>This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.',
	(int) 59 => '<p>Put up this case alongwith CWJC No. 1471 of 2001 for Admission on 31st March. 2004.'',
	(int) 60 => '<p>27. It is, therefore, clear that pursuant to the aforesaid interim order the petitioners were allowed to charge commission at the rate of 2.15% subject to the condition that they must be liable to return the amount of the commission to the Government in the event the writ petition fails. Admittedly, the authority of the respondents/State without any authority of law on the basis of mis-representation of fact by the petitioners allowed them to charge commission at the rate of 2.15%. As held above the petitioners have illegally realized and collected commission on the basis of order of the Deputy Commissioner, they are liable to refund the same to the respondents/State. The jurisdiction of High Court being extra ordinary is normally exercisable keeping in mind the principle of equity as held by the Supreme Court in the case of 'Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and other', AIR 1996 SC 2410. Their Lordships, observed :--',
	(int) 61 => '<p>'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts, and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'',
	(int) 62 => '<p>28. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them.',
	(int) 63 => '<p>29. These writ applications are therefore, dismissed with the aforesaid direction.<p>',
	(int) 64 => '<p>'
)
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Subject	Commercial
Court	Jharkhand High Court
Decided On	Apr-16-2004
Case Number	CWJC No. 1471 of 2001 and WPC No. 410 of 2004
Judge	M.Y. Eqbal, J.
Reported in	2004(2)BLJR1153; [2004(2)JCR626(Jhr)]
Acts	Essential Commodities Act, 1955 - Sections 2, 3 and 5; Kerosene (Restriction on use and Fixation of Ceiling Price) Order, 1993; Constitution of India - Article 226
Appellant	All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association
Respondent	State of Jharkhand and ors.
Appellant Advocate	Basudeva Prasad, Sr. Adv.,; B. Poddar,; Anil Kumar,;
Respondent Advocate	A.G.R.N. Sahay, SCI,; A.K. Sinha,; K.K. Jhunjhunwala
Disposition	Application dismissed
Cases Referred	Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and

All India Kerosene Oil Dealer Federation and Jharkhand Kerosene Dealers Association Vs. State of Jharkhand and ors. - Court Judgment